New parody copyright exception by Easter 2014

Who: Department for Business Information and Skills and the Intellectual Property Office

When: 17 December 2013

Where: Whitehall

Law stated as at: 7 January 2014

What happened:

After a consultation organised by the Intellectual Property Office earlier in 2013, the Department for Business, Information and Skills has made it clear that it intends to move quickly to introduce various changes to UK copyright law.

Amongst these changes are amendments to the Copyright, Designs and Patents Act 1998 (“CDPA”) which will allow use of copyright works for parody purposes. The current plan is that these changes will be effective from Sunday 6 April 2014, in time for Easter advertising campaigns.

As previously reported on marketinglaw, the route the government is taking uses the existing defence of “fair dealing.”

Normally a copyright work is infringed wherever the whole or a substantial part of it is reproduced. However, this will not be the case if the use qualifies as a “fair dealing.”

As the law currently stands, however, this “fair dealing” defence will not be available unless the reproduction is for research, criticism, review, private study or the reporting of current events and in most of these cases, “sufficient acknowledgement” is given to the original work.

The effect of the new law will be to extend these categories of fair dealing to include use:

“for the purposes of caricature, parody or pastiche.”

The proposed amendments go on to provide:

“To the extent that the term of a contract purports to restrict or prevent the doing of any act which would otherwise be permitted [by the new parody exception] that term is unenforceable.”

Why this matters:

Although there may still be changes before its precise form is finalised, the UK government seems intent on moving ahead with this significant change. It will bring us into line with most EU states who, as permitted by Article 5(3)(k) of the EU Copyright Directive 2001/29/EC, already operate such a defence.

The alignment may not be complete, however, as the Directive does not impose the additional qualification that the use must be a “fair dealing.” Here lies the rub for UK advertisers and creative agencies, first because the “fair dealing” hurdle is not necessarily an easy one to surmount, as much case law on its demarcation lines attests.

Secondly, because of divergences in approaches to parody, a campaign that cuts the mustard legally in the UK may still not be acceptable in other EU states. Therefore a pan European campaign containing a parody will need country by country checks, at least until current proposals to further harmonise EU copyright laws come to fruition and force a common “parody” definition.

Finally, rights owners and licensors, such as those granting synchronisation licences to advertisers, may have qualms about this proposed provision:

“To the extent that the term of a contract purports to restrict or prevent the doing of any act which would otherwise be permitted [by the new parody exception] that term is unenforceable.”

Say a music rights owner does not want an advertiser to parody the work and does a deal on that basis, allowing only a straight re-rendition of the original piece in the ad soundtrack.

This proposed amendment to the CDPA would seem to cast doubt on the enforceability of such a perfectly legitimate restriction. The situation might be remedied, perhaps, by drafting which made it clear that the derogation did not operate to prevent the advertiser from parodying the work insofar as this might come within the parody sub division of the “fair dealing” defence in the CDPA. It is difficult to see, however, how such language, with all the uncertainty it entails, would be attractive to licensors.